In Julian Strangio v Sydney Trains (2023), the Fair Work Commission (FWC) considered whether a failure to disclose criminal charges, in breach of the employer’s Code of Conduct, provided a valid reason for dismissal.

The Code of Conduct stated that if an employee is charged with a serious criminal offence, whether or not it is related to work, the employee must immediately notify their manager. The employee in question was charged with crimes involving drugs, guns and alleged proceeds of crime.

The employee claimed he did not disclose these charges to his employer on the advice of his criminal lawyer. The FWC ruled that this did not prevent the employer from relying on the Code of Conduct breach as a valid reason for the dismissal related to the applicant’s conduct.

The FWC considered that the failure to report not only amounted to a breach of the Code of Conduct, but also deprived the employer of the opportunity to suspend the employee pending the determination or outcome of the charges.

The FWC believed the reporting breach was not a minor breach, but constituted a breach that went to the heart of the trust the employer was entitled to have in its employment relationships.

The mitigating factors, including the employee's 37 years of employment, financial impact, and the availability of alternatives short of dismissal, were insufficient to render the dismissal harsh in all the circumstances.